dissenting.
The majority concludes that a justifiable controversy exists in this case. I disagree. In my view the trial court erred in assuming jurisdiction and granting declaratory relief.
This is a penal or criminal ordinance. The general rule is that a declaratory judgment proceeding does not lie to obtain an advisory opinion as to the construction of a criminal law. See Gortmaker v. Seaton, 252 Or 440, 450 P2d 547 (1969); Nelson v. Knight, 254 Or 370, 460 P2d 355 (1969). In Gortmaker, the court pointed out the rationale of this rule in the following language:
'The construction of the statutes involved in this litigation can be accomplished, if necessary, in an adversary proceeding any time a defendant demurs to an indictment on the grounds that the indictment does not charge a crime. If a defendant should assert that the rules under which he is being prosecuted were not properly promulgated, the trial court can decide the question and either party can appeal. ORS 138.020. When a simple and convenient means is at hand for testing a law, a declaratory suit between friendly parties will not lie. [Citations omitted.]” 252 Or at 444, 450 P2d 547.
The majority relies on Cornelius v. City of Ashland, 12 Or App 181, 506 P2d 182, rev den (1973), for the proposition that declaratory judgment was proper in this case. In Cornelius, we allowed declaratory relief because the ordinance there challenged did not provide for charging an individual with a crime. The ordinance authorized the police to take a person into custody and detain him for a *634certain period for investigation without charging the individual with a crime. Consequently, there would be no criminal proceeding in which the affected person could challenge the ordinance. Cornelius is therefore not in point here in that there the only avenue open to plaintiff to challenge the ordinance was by declaratory judgment. It was impossible for plaintiff to be prosecuted for violating that ordinance. Therefore, he did not have the usual remedy of demurring to the indictment or complaint~as suggested in Gortmaker~tina.t is normally available to any citizen desiring to challenge a substantive criminal statute. Here there is no reason why the usual remedy to challenge a substantial penal statute or ordinance is not available to this plaintiff. Accordingly, I would reverse and remand with instructions to vacate the judgment entered in the trial court.
While it is true that our Supreme Court has in a number of instances granted declaratory relief with reference to criminal statutes (see dissenting opinion in Cornelius), an examination of those cases will show that the issue of justiciable controversy was never raised or considered in any of these cases. The same appears to be true of the cases wherein declaratory relief was granted as to civil statutes and ordinances, with the exception of Recall Bennett Com. v. Bennett et al, 196 Or 299, 249 P2d 479 (1952), in which the officials were only nominal parties.
Roberts, Warden, and Van Hoomissen, JJ, concur in this dissent.